Divorce Blog

Mediation vs. Litigation – Resolving Matrimonial and Family Business Issues

By Karen Stewart

Mediation versus Litigation

Mediation helps with disputes, problems and conflictsLitigation and mediation are two different ways of settling disputes or conflicts. Before choosing the best option for you, it is a good idea to understand the differences. In this article, we will review the main steps of each as well as the pros and cons.

Mediation

Mediation is a positive and proven process for resolving disputes. It is less expensive, less time-consuming and less stressful. How it works is simple and effective.

Women Mediator Smiling at ClientA neutral mediator will sit in during the discussions and guide the conversations. This interaction helps parties to communicate clearly while finding common ground. The mediator works with the parties to identify the issues and find solutions. Once the parties agree on all the issues, the mediator commits the session to paper. Therefore, if there is a misunderstanding, the parties can refer to the document for clarity.

In some provinces, mediation is mandatory before you can go to court. You must demonstrate that you have attempted to resolve your issues before you can go in front of a Judge. The disadvantage of the court is that anything you present is on the public record. Mediation, in contrast, is private and confidential. Because of this, mediation is preferred if you have a family business or conflict.

When to use mediation

Mediation is useful for settling property and financial issues as well as child custody, senior care, and business conflicts. When using a mediator, try to find one specializing in the area of conflict you are trying to resolve. For example, mediation is a good option for divorcing couples.
Mediation Session
The mediation process focuses on what is best for each person, and with a divorce, this includes the children. Although both couples must participate in the process, it can also be done in separate rooms. This allows each party to express their opinions and feelings openly. And, without any fears or judgments that partners can cause, both sides have the opportunity to be heard.

Above all, mediation is a non-binding process, which means that it is not legally enforceable. This allows parties to explore various options without having to sign anything.

Hiring a Mediator

A Mediator is a neutral third party that facilitates the mediation process. There is a wide variation of mediators from unqualified to qualified and from experienced to inexperienced. There are a number of designations for a Divorce Mediator.

These designations include:

  • Certification in Family Mediations (FMC)
  • Certified Divorce Financial Analyst (CDFA)
  • Qualified Mediator (QMed)
  • and Chartered Mediator (CMed).

Hiring a mediator with a background in dispute resolution as well as knowledge on the topic is important.  In the case of divorce, a mediator should have an understanding of finance, matrimonial law, and parenting.

A mediator facilitates the interactions between parties by encouraging open and honest communication. They will focus on a solution and keep the negotiations on track.  The mediator uses techniques and communication skills to guide the process in a constructive way.

Litigation

Judge Courtroom LitigationLitigation is the practice of settling a dispute in front of a Judge in a court of law. This approach involves using lawyers. The plaintiff initiates a lawsuit, and the defendant responds. This process is adversarial, expensive and time-consuming.  Retaining a lawyer sets in motion a series of applications, affidavits, court appearances, and costly monthly retainers.

It is difficult to stop the litigation and switch to mediation after you have started a legal battle. In litigation, parties will present their case in court, along with an affidavit.

Using litigation for divorce does not guarantee you get the results you desire. Each lawyer will fight hard for their client, often resulting in neither party “winning.” In addition, it will cost a lot and may permanently destroy a relationship making positive co-parenting impossible. The Judge will make the final decision relating to financial division, custody and parenting, and support. The average litigated case will take 3 to 5 years.

Divorce Lawyer Reviewing Litigation ProcessHiring a Lawyer

Just like mediators, there are many different types of lawyers — each of them practicing in a specialized field. You will want to hire a divorce lawyer that practices Family Law. It is also recommended that you try to find one that has experience in financial matters or has access to a Certified Divorce Financial Analyst.

Mediation is the best way to Resolve Divorce Conflict.

Courtroom Litigation JusticeIn Canada, many Judges believe that family law matters should stay out of the courts. The reason is simple. A Judge is not the best person to make decisions about your family. You are.  Mediation is less cost, time and stress and, in most cases, works well. This is why divorce mediation is a great way to resolve the issues that come with divorce.

Regardless of which process you use to get a divorce, there are a lot of decisions that you will have to make. They include; financial division, parenting arrangements, child and spousal support, and how to share child expenses.

At the end of the mediation process, both parties agree on how the issues will be resolved.  Then a separation agreement is drafted. After this, the lawyers and the parties sign the agreement making it legally binding.

If the parties cannot agree through mediation, then litigation may be the only choice. In this case, the lawyers will negotiate on your behalf. And if that is not successful, a Judge will make the final decisions by court order.